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New Immigration Law Affects Employers

On September 30, 1996, President Clinton signed what was heralded as a tough, new immigration law. The law, much of which took effect on April 1, 1997, has received a great deal of attention in the press and other media for toughening "green card" and other visa requirements. Far less attention has been given to the law's impact upon businesses, particularly their employment practices.

The new law modifies the Immigration Reform and Control Act of 1986, which transformed employers into law enforcement agents by requiring them to document each employee's authorization to work. The 1986 law created demanding paperwork requirements to insure compliance and included stiff penalties -- fines of up to $1,000 per worker for documentation and recordkeeping violations, and up to $10,000 per incident for "knowingly" hiring an unauthorized worker. The 1986 Act also for the first time imposed upon U.S. employers liability for discriminatory hiring and firing of "protected" workers, including lawful permanent residents and people granted asylum or refugee status.

The Illegal Immigration Reform and Immigration Responsibility Act of 1996 provides a "good faith exemption" for employers attempting to satisfy the technical or paperwork requirements of the 1986 law. For example, if an employer has in place a system for completing the I-9 work authorization form, the employer is granted a 10-day "grace period" to correct any errors found in the system. The new law also mandates that by no later than September 30, 1997, the Attorney General must shorten the current list of documents which can be accepted by employers as proof of work authorization. Many documents, including, most probably, certificates of naturalization and citizenship, foreign passports, and birth certificates, will be deleted from the list.

The Department of Justice enforces anti-discrimination laws created to prevent discrimination because of national origin, citizenship and other protected status. The 1996 law does make prosecution for unlawful discrimination somewhat more difficult by now requiring that a finding must be made that an employer intended to engage in discrimination.

To comply with the immigration laws' recordkeeping requirements, and to insure that the "good faith exemption" created by the 1996 law applies to them, employers should at a minimum do the following:

  • Train personnel involved in the hiring process to recognize acceptable documentation evidencing work authorization, to complete I-9 forms accurately and to interview job applicants in a lawful, non-discriminatory way.
  • Make sure procedures are in place to verify and, if necessary, reverify, the identity and employment authorization of all employees hired after November 6, 1986.
  • Conduct periodic internal audits of all I-9s and correct any errors which may be found.
  • Create an alerting or "tickler" system designed to keep the employer aware of the termination date of any employment authorization.
  • Keep employees informed about and, if necessary, assist them in obtaining extensions of lawful employment status.

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